In a March 24, 2011 decision by Justice Fried, the Court considered defendant’s motion to strike plaintiffs’ reply to counterclaims, based upon plaintiffs’ failure to comply with a conditional order of discovery. Plaintiffs, in turn, filed a cross-motion, pursuant to CPLR 3103, for a protective order.
The case arose out of a contractual dispute between plaintiffs and Daily News LP. In 2010, the Court granted Daily News’s motion for summary judgment, dismissing the complaint, leaving alive only the counterclaims. The Preliminary Conference Order set August 20, 2010 as the date by which all discovery demands were to be served; September 20 as the date by which responses were due. Plaintiffs were late in responding to Daily News’s demands, and the parties further agreed among themselves to extend plaintiffs’ deadline to October 15. On October 19, plaintiffs responded, and claimed that the response included all relevant documents. No objections were interposed by plaintiffs. The Court ultimately entered a “conditional order” against plaintiffs, providing that if plaintiffs fail to comply with the discovery demand by December 10, then plaintiffs’ “reply to counterclaims shall be stricken and a finding of liability on all counterclaims entered in favor of Counterclaim-Plaintiff”.
On December 14, Daily News received plaintiffs’ responses, consisting of nine documents, 8 of which had been previously produced. Based on that production, Daily News moved to enforce the conditional order. Plaintiffs cross-moved for a protective order.
Since a conditional order is self-executing, the Court noted that the defaulting party must demonstrate reasonable excuse for its failure to produce, and an affidavit showing a meritorious defense or claim. In opposition to the motion, plaintiffs failed to produce an affidavit showing meritorious defense to the counterclaims, the application to enforce the conditional order was granted. As to plaintiffs’ motion for a protective order, the Court granted the motion only as to two items only—tax returns and other documents not related to the relationship of the parties. Since those two items were “palpably improper”, that is, material irrelevant to the issue in controversy, the Court granted the motion for a protective order.
23KT Gold Collectibles, LTD. v. Daily News, LP, Sup Ct, New York County, March 24, 2010, Fried, J, Index No. 650236/2009.